Vacated by Supreme Court, October 3, 2005

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4177

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
TIMOTHY EARL MILLS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-02-171)

Argued:

October 26, 2004

Decided:

January 19, 2005

Before WIDENER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

ARGUED: King Virgil Cheek, Jr., Greensboro, North Carolina, for

Appellant. Sandra Jane Hairston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter T. Johnson, Jr., Greensboro, North
Carolina, for Appellant.
Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
Timothy Earl Mills brings this appeal challenging the district
courts refusal to downwardly depart pursuant to United States
Sentencing Guideline 5H1.4 (5H1.4") from the sentence it imposed
on November 20, 2002.

Because we have no jurisdiction to review

the district courts refusal to downwardly depart, we dismiss.

I.
On May 28, 2002, a grand jury indicted Timothy Earl Mills
(Mills) on one count of conspiracy to knowingly, intentionally,
and unlawfully distribute more than one kilogram of heroin and more
than 50 grams of cocaine base (crack), one count of heroin
distribution, and one count of crack distribution.
of

his

indictment,

Mills

already

had

two

At the time

prior

narcotic

convictions, one from 1987 and one from 1994.

After initially pleading not guilty, Mills changed his plea to
guilty on the conspiracy charge.

Under the plea agreement, the

Government agreed to not oppose Millss motion to dismiss the

distribution counts of the indictment. Importantly, the Government
also agreed to only file an information of prior conviction for the
1994

conviction,

sentence.

thereby

lessening

the

likelihood

of

life

As the plea agreement noted, under the conspiracy count

of the indictment, any person who commits the offense for which he
is pleading guilty to after a prior conviction for a felony drug

offense

has

become

final

shall

be

sentenced

to

term

of

imprisonment which may not be less than twenty years and not more
than life imprisonment.

J.A. 12.

Further, any person who

commits the offense for which he is pleading guilty after two or

more prior convictions for a felony drug offense have become final,
shall be sentenced to a mandatory term of life imprisonment without
release, and a fine not to exceed $8,000,000.00, or both.

Id.

Finally, the Government agreed to recommend a reduction of the

offense

level

by

two

levels

contingent

upon

Mills

accepting

responsibility for his criminal conduct in a timely and sincere

manner.1 Subsequently, the Government filed a 5K1.1 motion seeking
a

35%

downward

departure

in

Millss

sentence

based

on

his

cooperation with the Government.

During his sentencing hearing, Mills argued that his medical
health should be factored into the calculation of his sentence. At
the time he changed his plea, Millss counsel notified the district
court that Mills had been HIV positive since 1996 and required a
cocktail of medicine to prevent his condition from worsening into
AIDS.
that

At the plea agreement hearing, the district court directed

he

receive

appropriate

medical

attention

during

his

incarceration to ensure that his situation would not degenerate

into something more serious. In spite of these instructions, Mills

In the event that such a reduction was granted and the

offense level remained above 16, the government further agreed to
request an additional one level decrease.
3

avers that he spent two months in a correctional facility in

Caldwell County, North Carolina receiving none of the care ordered
by the district court.2
situation,

Mills

was

After notifying the U.S. Attorney of the

transferred

to

Forsyth

County

where

he

received the necessary medical attention. However, Millss medical

condition, after the alleged failure of the prison system to
provide him with appropriate medical attention, had advanced to
full-blown AIDS.

Mills requested that the district court consider

both the fact that given his medical condition a lengthy sentence
could effectively be a death sentence, and the fact that his
medical

condition

worsened

on

account

of

indifference

and

negligence, when setting forth his sentence.

On this issue, the district court determined that it did not
have enough information in the record regarding Millss medical
care over the time period in question to determine whether proper
medical care (as per the courts directive) was given.

Therefore,

the district court sentenced Mills without consideration of the

medical issue, and noted that he would review the sentence when he
had the necessary documents related to the medical care Mills
received.
The district court ultimately found that Mills had indeed
accepted responsibility for his criminal conduct.

After noting

The district court did not actually order a particular

course of treatment, but instead ordered that Millss condition be
ascertained and that appropriate care be given.
4

that 240 months is the mandatory minimum for the conduct to which
Mills pled guilty, the district court sentenced Mills as follows:
Ordinarily, the Court would be sentencing Mr. Mills to a
period of 240 months imprisonment. However, in view of
the 5K1.1 which has been filed here, the Court has
reviewed that, and has heard from counsel, and has
decided that the 5K1 is appropriate, and under these
circumstances the Court removes Mr. Mills from his
ordinary guideline range and imposes the following
sentence:
It is adjudged that Mr. Mills shall be
committed to the Bureau of Prisons for a period of 150
months.
J.A. 51.
Following

his

sentencing

hearing,

Mills

made

motion

requesting that the court downwardly depart from the sentence

imposed pursuant to 5H1.4.

Specifically, 5H1.4 provides that

an extraordinary physical impairment may be a reason to depart.

U.S. Sentencing Guidelines Manual 5H1.4 (2003).

The district

court denied this motion, finding that Millss argument that the
treatment afforded Defendant before being transferred to a facility
of the Bureau of Prisons was so inadequate as to constitute cruel
and unusual punishment was not sufficiently supported by the
facts, and therefore refused to downwardly depart.
From this decision, Mills brings this appeal.

J.A. 99.

II.
Mills contends that the district court erred in not granting
his motion for a downward departure under 5H1.4.3

However, the

only circumstance in which review [of a district court's refusal

to depart] is available is when the district court mistakenly
believed that it lacked the authority to depart. United States v.
Edwards, 188 F.3d 230, 238 (4th Cir. 1999); see also United States
v. Minutoli, 374 F.3d 236, 239 (3rd Cir. 2004) (It is wellestablished in this Court that we lack jurisdiction to review the
merits of a district court's discretionary decision to refuse a
downward

departure

under

the

Sentencing

Guidelines

once

we

determine that the district court properly understood its authority

to grant a departure.); U.S. v. McBride, 362 F.3d 360, 376 (6th

Mills also contends that the district court promised him a

hearing on the issue of a 5H1.4 departure and that no such
hearing was ever held. Specifically, at the November 20, 2002,
sentencing hearing the district court stated:
What Im saying is, I dont think were going to get any
record any more than we have. I think were going to get
a hearing of what has happened and you will be notified
of that. I will give you an opportunity to be heard, Mr.
Johnson.
J.A. 52.
On December 1, 2002, Mills filed a motion for
reconsideration of that sentence under 5H1.4, which was later
denied by the district court.
Mills neglects the filing of this motion when contending that
he was denied the opportunity to be heard on this issue.
The
motion in question set forth in full the reasons why Mills believed
that he was entitled to a departure under 5H1.4. As such, we
find that Mills was heard on this issue and determine that his
deprivation claim has no merit.
6

Cir. 2004) (recognizing the general rule that a court's failure to

... grant a downward departure is not reviewable).
Therefore, the only determination before this court is whether
or not the district court mistakenly believed that it lacked the
authority to depart.

Mills makes no argument that the district

court was mistakenly unaware of its authority to downwardly depart

and the record does not support any such contention.

In the order

denying Millss motion for reconsideration, the district court

explicitly stated that the motion was denied because the allegation
of cruel and unusual punishment was not sufficiently supported by
the facts.

(J.A. 98-99).

In other words, the district court

considered and rejected the factual basis for downward departure,

concluding that [Mills] had not met the burden for departure.
U.S. v. Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999).
As

such,

review

of

the

district

courts

decision

is

unavailable and the appeal is dismissed.

DISMISSED